Sec. 39.02. ABUSE OF OFFICIAL CAPACITY. (a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly:
(1) violates a law relating to the public servant's office or employment; or
(2) misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant's custody or possession by virtue of the public servant's office or employment.
(b) An offense under Subsection (a)(1) is a Class A misdemeanor.
(c) An offense under Subsection (a)(2) is:
(1) a Class C misdemeanor if the value of the use of the thing misused is less than $100;
(2) a Class B misdemeanor if the value of the use of the thing misused is $100 or more but less than $750;
(3) a Class A misdemeanor if the value of the use of the thing misused is $750 or more but less than $2,500;
(4) a state jail felony if the value of the use of the thing misused is $2,500 or more but less than $30,000;
(5) a felony of the third degree if the value of the use of the thing misused is $30,000 or more but less than $150,000;
(6) a felony of the second degree if the value of the use of the thing misused is $150,000 or more but less than $300,000; or
(7) a felony of the first degree if the value of the use of the thing misused is $300,000 or more.
(d) A discount or award given for travel, such as frequent flyer miles, rental car or hotel discounts, or food coupons, are not things of value belonging to the government for purposes of this section due to the administrative difficulty and cost involved in recapturing the discount or award for a governmental entity.
(e) If separate transactions that violate Subsection (a)(2) are conducted pursuant to one scheme or continuing course of conduct, the conduct may be considered as one offense and the value of the use of the things misused in the transactions may be aggregated in determining the classification of the offense.
(f) The value of the use of a thing of value misused under Subsection (a)(2) may not exceed:
(1) the fair market value of the thing at the time of the offense; or
(2) if the fair market value of the thing cannot be ascertained, the cost of replacing the thing within a reasonable time after the offense.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1983, 68th Leg., p. 3241, ch. 558, Sec. 7, eff. Sept. 1, 1983. Renumbered from Penal Code Sec. 39.01 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 82 (S.B. 828), Sec. 1, eff. September 1, 2009.
Acts 2015, 84th Leg., R.S., Ch. 1251 (H.B. 1396), Sec. 28, eff. September 1, 2015.
Notes of Decisions
Cited in
106
cases (
6 in the last 5 years), 1979–2026 · leading case:
Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002).
Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002).
· cites it 2× “[9] Tex. Penal Code § 39.02(a)(1) ("A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly.”
Margraves v. State, 34 S.W.3d 912 (Tex. Crim. App. 2000).
· cites it 2× “See Tex.Penal Code § 39.02 (2000). The things of value that are at issue in the appellant's case fit one or all of the examples listed and meet either definition.”
Tovar v. State, 777 S.W.2d 481 (Tex. App.—Corpus Christi 1989).
· cites it 7× “Tex.Penal Code Ann. § 39.02 (Vernon 1989).”
Cnty. of Bexar v. Steward, 139 S.W.3d 354 (Tex. App.—San Antonio 2004).
· cites it 4× “[4] See Tex. Penal Code Ann. § 39.02 (Vernon 2003).”
Campbell v. State, 5 S.W.3d 693 (Tex. Crim. App. 1999).
· cites it 2× “See TEX. PENAL CODE § 39.02(b) (Abuse of Official Capacity).”
State v. Edmond, 933 S.W.2d 120 (Tex. Crim. App. 1996).
· cites it 2× “NOTES [1] Appellee was charged under Texas Penal Code § 39.02, which read in relevant part: (a) A public servant acting under color of his office or employment commits an offense if he: (1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure,…”
Zuniga v. State, 664 S.W.2d 366 (Tex. App.—Corpus Christi 1983).
· cites it 6× “02 (Vernon 1974) with TEX.PENAL CODE ANN. § 39.02 (Vernon 1974).”
State v. Mason, 980 S.W.2d 635 (Tex. Crim. App. 1998).
· cites it 2× “TEX.PEN.CODE ANN. §§ 39.02(a); 39.03(a); 39.”
Campbell v. State, 139 S.W.3d 676 (Tex. App.—Amarillo 2004).
· cites it 3× “Texas Penal Code Section 39.02 (Vernon 2003).”
State v. Terrazas, 962 S.W.2d 38 (Tex. Crim. App. 1998).
· cites it 2× “In fact, the statute does not purport to confer any rights upon criminal defendants, but is by its nature a rule of ethical conduct for prosecutors; violations of the statute can be addressed through State Bar grievance procedures or criminal prosecution of the offending…”
Ex parte Walsh, 530 S.W.3d 774 (Tex. App.—Fort Worth 2017).
“See Tex. Penal Code Ann. § 39.02 (West 2016).”
State v. Miguel Martinez, 548 S.W.3d 751 (Tex. App.—Corpus Christi 2018).
· cites it 2× “” TEX. PENAL CODE ANN. § 39.02(a)(1). “Law relating to a public servant’s office or employment” is defined as “a law that specifically applies to a person acting in the capacity of a public servant and that directly or indirectly: (A) imposes a duty on the public servant; or (B)…”
Tex. Penal Code § 39.02(A)(1): 1 case
Tex. Penal Code § 39.02(a): 16 cases
State v. Mason, 980 S.W.2d 635 (Tex. Crim. App. 1998).
“TEX.PEN.CODE ANN. §§ 39.02(a); 39.03(a); 39.”
Campbell v. State, 139 S.W.3d 676 (Tex. App.—Amarillo 2004).
“Texas Penal Code Section 39.02 (Vernon 2003).”
Tex. Penal Code § 39.02(a)(1): 9 cases
Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002).
“[9] Tex. Penal Code § 39.02(a)(1) ("A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly.”
State v. Terrazas, 962 S.W.2d 38 (Tex. Crim. App. 1998).
“In fact, the statute does not purport to confer any rights upon criminal defendants, but is by its nature a rule of ethical conduct for prosecutors; violations of the statute can be addressed through State Bar grievance procedures or criminal prosecution of the offending…”
Zuniga v. State, 664 S.W.2d 366 (Tex. App.—Corpus Christi 1983).
“02 (Vernon 1974) with TEX.PENAL CODE ANN. § 39.02 (Vernon 1974).”
State v. Miguel Martinez, 548 S.W.3d 751 (Tex. App.—Corpus Christi 2018).
“” TEX. PENAL CODE ANN. § 39.02(a)(1). “Law relating to a public servant’s office or employment” is defined as “a law that specifically applies to a person acting in the capacity of a public servant and that directly or indirectly: (A) imposes a duty on the public servant; or (B)…”
Tex. Penal Code § 39.02(a)(2): 19 cases
State v. Miguel Martinez, 548 S.W.3d 751 (Tex. App.—Corpus Christi 2018).
“” TEX. PENAL CODE ANN. § 39.02(a)(1). “Law relating to a public servant’s office or employment” is defined as “a law that specifically applies to a person acting in the capacity of a public servant and that directly or indirectly: (A) imposes a duty on the public servant; or (B)…”
Tex. Penal Code § 39.02(b): 2 cases
Campbell v. State, 5 S.W.3d 693 (Tex. Crim. App. 1999).
“See TEX. PENAL CODE § 39.02(b) (Abuse of Official Capacity).”
Tex. Penal Code § 39.02(b)(3): 1 case
Tex. Penal Code § 39.02(c): 1 case
Tovar v. State, 777 S.W.2d 481 (Tex. App.—Corpus Christi 1989).
“Tex.Penal Code Ann. § 39.02 (Vernon 1989).”
Tex. Penal Code § 39.02(c)(1): 1 case
Tex. Penal Code § 39.02(c)(2): 5 cases
Campbell v. State, 139 S.W.3d 676 (Tex. App.—Amarillo 2004).
“Texas Penal Code Section 39.02 (Vernon 2003).”
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